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Court Papers Name "Tiger" Leak Defendants, Apple Seeks Damages [UPDATED]

TMO Exclusive - Court Papers Name "Tiger" Leak Defendants, Apple Seeks Damages [UPDATED]

by , 7:45 PM EST, December 21st, 2004

A college student from Raleigh, North Carolina is the nucleus of a lawsuit filed Monday by Apple Computer. Court documents obtained by The Mac Observer reveal the names of three people being sued by the company for allegedly distributing "Tiger," the company's next major Mac OS X release. Those same documents show that Apple is seeking an injunction against the defendants, as well as unspecified damages.

Apple's court filings indicate the company took a systematic and deliberate approach in finding and tracking the movements of both the Tiger builds and the defendants' alleged actions. The company alleges that the three members of the Apple Developer Connection (ADC) -- Apple's in-house developer network -- violated their membership agreement by downloading and distributing the Tiger builds through BitTorrent, a very popular peer-to-peer file-sharing network.

merkin, desicanuk, and dmsmac

Apple's court filings allege that one Doug Steigerwald, a.k.a. "merkin," a resident of Raleigh, North Carolina, downloaded Tiger Build 8A294 from Apple's ADC Web site, and made it available through BitTorrent, where it was then further distributed by many other people, including the two other defendants.

"To enable faster downloading by others," Apple alleged in its court filings, "Steigerwald used the computing resources of a university in violation of institutional rules and policies. Steigerwald was so eager to distribute the Apple Tiger Build 81294 Software, that he began to transfer the file even before he had installed and tested the software on his own computer."

Apple further provides quotes it alleged Mr. Steigerwald made through BitTorrrent, which Apple refers to as 'the Torrent Website:' "In a posting on the Torrent Website, Steigerwald, using his alias 'merkin,' declared 'I'm trying to spread it [the file containing the Apple Tiger Build 8A294 Software] out before I install. [...] I'll install it once there a few more seeders."

Apple also contended that Mr. Steigerwald "used the computing resources of a university in violation of the institutional rules and policies of that university." Not named is the university itself; Raleigh, North Carolina is the home of some 11 colleges and universities, including North Carolina State University.

Apple further alleges that some 2,500 copies of the Tiger build were distributed starting from Mr. Steigerwald's efforts. Of the more than 2000 people who may have been involved in trading the file, Apple is suing only two others, Vivek "Sunny" Sambhara, a.k.a. "desicanuk," of Atlanta, GA, and David Schwartzstein, a.k.a. "dmsmac," of Norwalk, CT.

Like Mr. Steigerwald, Apple contends that Messrs. Sambhara and Schwartzstein are both ADC members. Unlike Mr. Steigerwald, however, Apple is accusing the other two defendants not of distributing a file obtained directly from Apple, but of redistributing the file first obtained by Mr. Steigerwald.

BitTorrent

BitTorrent is, in effect, the next generation of file sharing technologies. The network functions without a central server, relying instead on its users to both track and provide bandwidth and computing power to distribute files. One user makes available a file, and every user that then downloads that file becomes a server, too. Each user provides different blocks of the file to other users, forming what is known as a "swarm" of mini-servers, and spreading out the load in the process.

For a full and detailed explanation of how BitTorrent works, visit Wikepedia for a description that includes illustrations.

While BitTorrent is commonly known to be a vehicle for trading copyrighted materials, it is also used for many and varied legitimate uses. For instance, one of those uses is the distribution of Linux distributions. Several Linux distributions are officially distributed through BitTorrent, a process that has made it faster and easier for many users to get new Linux builds, and makes it substantially cheaper for the developers in the process. All of the bandwidth is provided by and paid for by the users.

Whether or not Messrs. Samhara and Schwartzstein obtained the file directly from Apple, however, the company's court filings clearly assert that the two violated their ADC membership agreements by allegedly participating in the distribution of the files to third parties.

"An ADC member who received a seed key or Pre-Release Software from an ADC member," Apple wrote in its court filings, "is prohibited by the ADC Agreement from transferring the key or software to any person other than an ADC member who works for the same entity."

For each of the defendants, Apple notes they agreed to not "'transfer, copy, or disseminate' Pre-Release Software to anyone other than '[his] employees and contractors who have an existing ADC membership.'"

Apple obtained the names of the three defendants from posts on a BitTorrent tracking site. Tracking sites, such as SuprNova.com, allow users to post the different files they wish to distribute through BitTorrent. In addition, some BitTorrent clients provide information about the users actively trading any particular file.

In its court filings, Apple offers quotes from each of the three defendants relating to the distribution of the Tiger build.

Damages

Apple is seeking two things from its civil lawsuit, an injunction preventing any (alleged) further distribution from the defendants, and damages.

"Maintaining Pre-Release Software as a trade secret is essential to Apple's ability to compete in the markets for personal computer hardware and software," Apple wrote in its court filings. "If Apple's competitors had access to Apple's Pre-Release Software, those competitors could benefit economically from the knowledge gained from that access by directing their product development or marketing efforts to frustrate Apple's plans. This strategic advantage to Apple's competitors could, in turn, severely harm Apple."

To that end, Apple told the court that it "is entitled to recover from Defendants the damages sustained as a result of these breached of the Agreements. The amount of such damages cannot be determined at this time, but will be proven at trial. Apple is further entitled to recover from Defendants the gains, profits, and advantages that Defendants obtained as a result of these breaches. Apple is currently unable to ascertain the full extend of these gains, profits, and advantages, but will prove the value thereof at trial."

Apple is seeking a jury trial.

Brad Gibson contributed to this article.

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